May 02, 2008

Marty Lederman Defends John Yoo

Wow. Just wow. This is supposed to be a defense:

Balkinization: There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is... that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

Such evidence of the lawyers' belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the "correctness" of the conclusions contained in the torture memos.... I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest....

However, I think that Yoo, Addington and their crew... wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be).... They also were aware that this law of presidential powers can only be developed in a pro-presidential direction... if Presidents and their lawyers make novel claims... and those claims are not resisted, or are even ratified....

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate -- and whether it must be done openly, and with full candor -- are very important and difficult questions...

Comments

Marty Lederman Defends John Yoo

Wow. Just wow. This is supposed to be a defense:

Balkinization: There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is... that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

Such evidence of the lawyers' belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the "correctness" of the conclusions contained in the torture memos.... I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest....

However, I think that Yoo, Addington and their crew... wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be).... They also were aware that this law of presidential powers can only be developed in a pro-presidential direction... if Presidents and their lawyers make novel claims... and those claims are not resisted, or are even ratified....

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate -- and whether it must be done openly, and with full candor -- are very important and difficult questions...